Posted on by Mark Movsesian

UK Supreme Court Decides Important Ministerial Employment Case

Yesterday, the UK’s Supreme Court decided an important ministerial employment case, President of the Methodist Conference v. Preston. In many respects, Preston tracks the US Supreme Court’s recent ministerial exception case, Hosanna-Tabor, though the British case does not refer to Hosanna-Tabor and doesn’t explicitly address church autonomy concerns.

In Preston, a Methodist minister sought relief under UK employment law for unfair dismissal. The question turned on whether Preston was an “employee” for purposes of the law, which, in turn, depended on whether she worked for the church under a “contract of employment.”  By a 4-1 vote, the Supreme Court held that she did not.

In the past, Lord Sumption’s opinion explained, UK cases drew a bright line between clergy, who were understood to hold offices of an essentially spiritual nature, and mere employees. But these rulings depended on “social instincts” that do not obtain in today’s more “secular and regulated context.” Today, the question turns on the precise terms that govern a minister’s employment. In other words, the UK courts must apply what Americans would recognize as a “neutral principles of law” approach. Courts must look at the terms of a minister’s employment in light of the surrounding circumstances to see what the parties reasonably intended.

Here, Lord Sumption wrote, the context made plain that Methodist ministers like Preston are not contractual employees. Preston had no contract with the church; her employment was governed completely by the church’s constitution. Her ordination, conferred by the laying on of hands, was understood to be a lifelong covenant. Her stipend was not seen as consideration for her work, but as a subsidy to allow her to serve the Lord. In short, by its terms, ministry in the Methodist Church was “a vocation, by which candidates submit themselves to the discipline of the church for life.” No special circumstances in Preston’s case altered this conclusion.

In its insistence on looking to the particular circumstances of a plaintiff’s employment, Preston echoes the flexible approach to the definition of minister that one sees in Hosanna-Tabor. Unlike the American court, though, the British court didn’t much address the underlying church autonomy values that ministerial exceptions serve. In large part, this reticence results from the different texts the courts were construing. Preston is a straightforward statutory question without constitutional implications; Hosanna-Tabor, by contrast, depends on an understanding of the Free Exercise and Establishment Clauses of the First Amendment.

(H/t: Law & Religion UK).

Posted on by Marc O. DeGirolami

Horwitz, “Freedom of the Church Without Romance”

For those interested in the exploding work on the freedom of the church (and you should all be!), do see Paul Horwitz’s new tour de force draft article, Freedom of the Church Without Romance, a typically graduated and thoughtful piece by a defender of ecclesial liberty.

I haven’t yet read the entire piece, but what I have read is rich and very interesting. I touch on ideas of liberty of the church in my chapter on free exercise applications of the tragic-historic method in The Tragedy of Religious Freedom–in Chapter 9 where I discuss the Hosanna-Tabor case. But because (I think!) my view of freedom of the church is perhaps not quite as potent in certain ways as is Paul’s (it is subject to perhaps greater particularistic assessment by courts and is less committed to the general superstructure of Horwitzian First Amendment institutionalism, even as qualified in this piece), I wonder whether, for me, the suggestion of embracing a “strong non-establishment regime” follows as powerfully as it does for Paul (if one understands a “strong” disestablishmentarian regime in the way that I suspect Paul does). Some of Paul’s questions toward the end of the piece about arguments involving church freedom alongside others concerning equal access of religious entities in the provision of services do not seem to me to give churches “a competitive advantage” that is troubling for Establishment Clause purposes (one can believe this, I think, and also agree with Paul about the importance of the economics of religion quite apart from the issue of its constitutional weight), though I understand the point that Paul is making. At any rate, the piece is well worth a good, long read. The abstract follows.

This Article is part of a symposium issue titled “Freedom of the Church in the Modern Era.” Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court’s decision affirming the “ministerial exception” doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,the idea of “freedom of the church” has taken on new champions–and critics.

This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion.

Both historical and economic analysis of the concept of”freedom of the church” suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions–or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of “freedom of the church” means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion’s status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church’s well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church–the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime.

The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions.

There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.

Posted on by Marc O. DeGirolami

Vauchez, “Francis of Assisi: The Life and Afterlife of a Medieval Saint”

Francis of Assisi is (by saintly standards) much in the news of late. It is thereforeFrancis of Assisi lucky that what looks like a magisterial treatment of St. Francis was recently translated for English-speaking audiences–one which explores not only his own ideas but how those ideas influenced subsequent generations of political actors, religious leaders, and intellectuals to the present day. The book is Francis of Assisi: The Life and Afterlife of a Medieval Saint (Yale University Press 2012, but only just released in the more affordable paperback) by the eminent medieval historian André Vauchez (University of Paris X) (translated by Michael Cusato). The publisher’s description follows.

In this towering work, André Vauchez draws on the vast body of scholarship on Francis of Assisi produced over the past forty years as well on as his own expertise in medieval hagiography to tell the most comprehensive and authoritative version of Francis’s life and afterlife published in the past half century.

After a detailed and yet engaging reconstruction of Francis’s life and work, Vauchez focuses on the myriad texts—hagiographies, chronicles, sermons, personal testimonies, etc.—of writers who recorded aspects of Francis’s life and movement as they remembered them, and used those remembrances to construct a portrait of Francis relevant to their concerns. We see varying versions of his life reflected in the work of Machiavelli, Luther, Voltaire, German and English romantics, pre-Raphaelites, Italian nationalists, and Mussolini, and discover how peace activists, ecologists, or interreligious dialogists have used his example to promote their various causes. Particularly noteworthy is the attention Vauchez pays to Francis’s own writings, which strangely enough have been largely overlooked by later interpreters.

The product of a lifetime of study, this book reveals a historian at the height of his powers.

Posted on by Marc O. DeGirolami

Leon, “An Image of God: The Catholic Struggle With Eugenics”

One of the most disquieting cases (in a rather rich field) for my students inAn Image of God constitutional law is Buck v. Bell (1927), in which Justice Oliver Wendell Holmes, Jr., writing for the Court, upheld Virginia’s forced sterilization law for mentally retarded persons against a 14th Amendment challenge. The influence of eugenics was powerful in the early twentieth century and that influence is reflected in perhaps the best-known line of the case: “Three generations of imbeciles are enough.” Here is a new book that discusses eugenics and Catholic resistance to it, An Image of God: The Catholic Struggle with Eugenics (University of Chicago Press 2013) by Sharon M. Leon. The publisher’s description follows.

During the first half of the twentieth century, supporters of the eugenics movement offered an image of a racially transformed America by curtailing the reproduction of “unfit” members of society. Through institutionalization, compulsory sterilization, the restriction of immigration and marriages, and other methods, eugenicists promised to improve the population—a policy agenda that was embraced by many leading intellectuals and public figures. But Catholic activists and thinkers across the United States opposed many of these measures, asserting that “every man, even a lunatic, is an image of God, not a mere animal.”

In An Image of God, Sharon Leon examines the efforts of American Catholics to thwart eugenic policies, illuminating the ways in which Catholic thought transformed the public conversation about individual rights, the role of the state, and the intersections of race, community, and family. Through an examination of the broader questions raised in this debate, Leon casts new light on major issues that remain central in American political life today: the institution of marriage, the role of government, and the separation of church and state. This is essential reading in the history of religion, science, politics, and human rights.